BAND tI. UNITED STATEL .
RAND 11. UNITED STATES.
(District Court, D. Maine. April 27, 1889.)
UNITED STATES COMMIsSIONERIY-FEEs""-DRAWmG COMPLAmTS.
Under Rev. St. O. S. § 847. allowing commissioners. "for issuing any war· rant or writ. and for any other service, the sRme compensation as is allowed to clerks for like services. " and in accordance with the construction thereof adopted by the accounting officers of the treasury, commissioners are entitled to fees f9r drawing complaints in criminal cases. .For entering returns on warrants to arrest and to commit. and on summons required by order of the circuit court, commissioners are enti tled to the same compensati<>n as is allowed to clerks for like services. Under Rev. St. U. S. § 1014, the commissioner is compelled to return copies of process to the court; and the accounting officers of the treasury have no right to make an arbitrary. rule limiting the length of such copies.
8. SAME':-'COPIES OF PROCESS.
.. SAME-DOCKET FEES.
Asthecommissioner is required by the order of the circuit court to keep a docket in all criminal cascs. in which he shall make entry of all proce4;ld· ings before him, commencing with the complaint. he is entitled to docket feei in cases where the proceedings before himself have been discontinued, and the prisoner taken before another and nearer magistrate.
Petition for Allowance of Claim against the United States for fees as commissioner. E. M. Rand, pro se. George E.Bird, U. S.Atty.
WEBB, J .. This is a petition, under the act of March 3, 1887, for commissioner's fees, which have heen disallowed by the accounting·Qffieers of the treasury department. That the services have been perfo.rmed and accounts for the same presented in strict compliance with therequirements of the law, or that the items specified in the petition have been disallowed, there is nG denial. The case is presented on murrer, and the only contest is as to the right of the petitioner to compensation as demanded by him. The items claimed amount to $248.85, all but $45.35 depends on the questions considered and decided in Rand v. U. S., 36 Fed. Rep. 671, further discussion of which is now unnecessary. This $45.35, in regard to which objections, not before made, are now urged, is composed of items: "For complaints in excess of two folios, $8.55; for all complaints, $15; for'entering returns of warrants to arrest, $2.55; for entering returns of summons, $2.55; fer entering returns of warrants. to commit, $1.20; for copies of process to court, in excess of arbitrarily fixed by accounting officers as sufficient, $4.50; for docket fees of $1 in cases where the accused person on arrest was taken before another commissioner, $11. In respect to the disallowance of a portion of the commissioner's charge for copies of process returned to court, because the copies exceeded the number of folios the :accounting officer deems necessary, it needs only to be said,that by section 1014 of the Revised Statutes the <:ommissioner is compelled to
turn to the court copies of the process, together with the recognizances of witnesses. His compensation for so doing depends on the length of the copy,-a copy, not an abstract,-and there can be no arbitrary rule determining that length; The general. question as to docket fees is in this case modified by the fact that fees of one dollar, as for proceedings discontinued or dismissed withotit'issue, are demanded. in cases where the respondents were arrested UpOll,wa,rrants issued by the petitioner, and, for purposes of 'economy, made returnable before himself or any other commissioner; and were takel1 for' further proceedings before commissioners residing nearer to the place ofarrest and the home the witnesses. An order of the circuit court requires every commissioneracting in criminal cases tdkeep a docket, in w:hioh he shall make entry of all proceedings before him, commencingwiththe 'complaint. In obedience to this order the petitioner kept his docket,until by the taking of the prisoner before' another' and· nearer magistrate,' proceedings before himself· were discontinued. This service he should be paid for, if etititled to docket fees in any case, and tha.t such fees lj,re proper charges! have expressed my opinion in llandv. U. S. 'supra, and do' not now see any reason to . , recede frllII!.,lt, " ' , , , , ' . Entering returns on warrants . to arrest and to commit and on mons seems to be required by the order of the circuit court. For such servioe commissioners, by the ,fee bill, are entitled to the same compensation allowed to clerks for like services, which corresponds with the rate charged in this case. Until the presentation of accounts for services from October 1, 1888, to December 31, 1888. commissioners have been allowed and paid without objection fees for drawing complaints at the rate of 15 cents a folio, the accounting officers only recently assuming to det6i'mine.by an arbitrary and inflexible, rule the necessary length, disallowing allin excess of thatle.ngth as unnecessar,y verbiage. A part of the items demanded by this very petition are for disallowances on account of such "unnecessary length." It is now contended that no, fees whatever can be allowed for that service. The atatute regulating the compensation of commissionera does not pretend to. specify everything which in the disoharge of their duty these officers are required t9 do, and for which they Shall be paid. "For issuing any warrant or writ. and for any other service, the same compensation as is allowed to clerks for like services," provision ·of the Revised Statutes, § 847. Precisely ,what is the scope and effect of the phrase, "any otheraervice, the same compensation as is allowed to clerks for like services," is a question of construction. ' From the date of the enactment of the fee bill until within a few monthsm the filing of the petition in thisoase, compensation for drawing complaints has been allowed by the treasury (lfficers to the COll'l, missioners; accounts containing charges for that seryice have been approved and oel1tified by the cou,rts. 'The department of justice has con(lurred in and approved as is, plain from the fact that in its registers,' compiled by authority of the attorney general, who exercises general. supervisory powers over the accounts of officers oLthe courtaof the United States, (seotion 868,) in the several editions of 1883,
667 1884, and 1886, under the heading, "Regulations Prescribed by the Accounting Officers of the Treasury'Department," is given this "Form for Commissioner's Account for Fees," viz.: "The United States vs. Charge, - - - . Date of services. Drawing complaint, three folios, 45 cents," etc. By this uniform custom commissioners have been induc,ed to do the work of complaints,-work aIwaysneeds . care,andis·often attended with difficulty calling for legalknowledgl) and skill. The fee charged and hitherto allowed barely pays for the manuscript work.. If the commissioners contented themselves with tering an.oath to perElons,'making informal and insufficient complaints they wOllld in many cases, if not in most, properly decline to issue warrants for· the arrest of no violation of law being charged; or on a hearing they would be compelled to dismiss the complaint. It is familiar experience with everyone who administers the criminal law that compllJ:inants most imperfectly appreciate the elements of crime; and in making accusations of violations of law omit material and introduce immaterial statements. Before issuing his warrant and causing an arrest to be made, it is the duty of the commissioner to see that the complaint sets out enough to justify and demand such proceeding. If he is told that for the labor and trouble of supplying fatal insufficiency in the complaint and putting it in properrorm he will not be paid, he can well decline to d6 so, and say, "When sufficient complaint is made to me, I will grant a warrant." It is for the public interest that this course be not pursued. If the commissioner does not make needed inquiry, and put complaints in form to justify a warrant, most instances no one will. To do this work commissioners have been encouraged by the allowance by the trea'sury officers of very moderate compensation; by the approvalof their accounts by the courts; and by the instructions contained' in the rules adopted by the accounting officers of the treasury department, and published for the guidance of the commissioners by the department' of justice. The services charged for being so necessary; the usage to pay for them having existed continuously from the time of the enactment of the fee bill with so general approval of the officers whose duty it is' to execute that statute,-the construction of the law which drawing complaints ought not gives compensation to commissioners eat optima et in now to be overruled. Contemporanea lege,---'-aptimus legis interpres consuetuio. Edwards v. Darby, 12 Wheat. 206-210;U. S. v. Bank, 6 Pet. 29-39; U. S. v. Macdaniel, 7 Pet. 1-15; Stuart v. Laird, 1 Cranch, 299; Burgett v. Lapice, 8 How. 71; In8urance Co. v. Hoge, 21 How. 35-66; Peabody v. Stark, 16 Wall. 244; Smythe v. Fiske, 23 Wall. 374-382; U. S. v.Moore, 95 U. S. 760...,763; U. S. v. PUgh, 99 U. S. 269; Five Per Cent. Cases, 110 U. S..485, 4 Sup. Ct. Rep. 2W; Hahn v. U. S., 107 U. S. 402, 2 Sup. Ct. Rep..494; U. S. v. Graham, 110 U. S. 219-221, 3 Sup. Ct. Rep. 582; U. S. v. Hill, 25 Fed. Rep: 379, affirmed, 120 U. S.170, 7 Sup. Ct Rep. 510; Brown v. U. S., 113 U. S. 570,5 Sup. Ct. Rep. 648; U. S. v. PhiJJJrick, 120 U. S. 59,7 Sup. Ct. Rep.'413; The Laura, 114U. S. 416, 5,Sup. Ct. Rep. 881'. Judgment for petitioner for $248.85.
BAXTER ". HElLNER.
May 7, 1889.)
SALVAGE-IMPLIED REQUEST-ADMIRALTY RULE
19. Under rule 19 of the supreme court, in admiralty, an action for salvage may be maintained ag-ainst the person upon whose request and for whose beuefit the service is performed. The request may be implied as well as expressed.
SAME-AcTION IN PERSONAM.
Upon a dispute between the owner of coal sunk aud an insurance company as to whether. he was insured or I\ot, the agent of the company, iu the pres'nce of the owner and of the salvor. requested the salvor to go on and raise the coal, and it was agreed that whoever was liable would pay; the owner also saying: "I suppose I will have to pay for it if I ani responsible." The salvor thereupon raised the' coal, and delivered it to the persons directed by the owner. Held, that the owner was liable in personam, and that it was immaterial whether the alleged insurers were liable to indemnify him or not.
In Admiralty. Wing, Slwudy & Pumam, for libelant. Joseph A. Welch, for respondent.
BROWN, J. The canal-boat Alanson Post, with a ca'rgo of coal, being sunk at the foot of Jane street, North river, was raised by the libelant in August, 1888. The respondent was the owner of the cargo, which he had contracted to deliver to Addickes & Son. The boat and cargo were raised, and the cargo delivered to them, in accordance with the respondent's arrangement, upon a certain allowance for the damages arising from the sinking of the cargo.· The libeUs filed to recover $195.07, 'theshare of.the cargo for the libelant's services, in the nature of salvage, ill raising boat and cargo. It is not disputed that the amount is reasonable, and the apportionment just. The defense is that the defendant is not liable, and that the suit should be against the insurers of the cargo. Before the salvage services were rendered, a dispute arose between the· respondent and: his alleged insurers whether the cargo was covered by, insurance, and,if so, by what company. The respondent claimed to insured by the China Mutual O<;>mpany. Its agents denied responsibil, ity. The insurers of the hull arranged with the libelant to raise the boat, and the cargo would necessarily be raised with it. Before entering on the service the libelant sought the respondent, and in an interview with him and the agent of the Ohina Mutual Oompany I in reference to the cargo, it was agreed that Mr. Baxter should proceed, and be paid by whoever was legally bound to pay. Mr. HeHner was present and, agreed to this, saying: "I suppose I will have to pay for it if I am responsible."Mr; HeHner had already arranged for the delivery of the coal to Mr. Addickes. Mr. Baxter thereupon proceeded with the work. The coal was delivered to Addickes & Son accordingly, and the respondent has received the full benefit of the service. Under these circumstancea, I think the respondent is legally liable for the salvage service. When Mr. Despard, the agent of the China Mutual Oompany, in tp.e pres-